If they legalize pot, will they let all the people in prison for pot out of jail?

_Peace for Pot Prisoners

When I received this question, I really wanted to be able to answer, “Yes!”

But it’s not that simple.

For one thing, voter initiatives and legislation reforming marijuana laws all indicate a certain point in time when they take effect. From that moment forward, the law is changed. New laws and voter initiatives are not retroactive. So, for people whose marijuana crime was committed prior to the change, the old law is what affects them.

This means one or more of the following needs to happen for a marijuana prisoner to be released:

1) The governor, or the president, or a parole board, needs to pardon, parole, grant clemency to, or commute the sentence of the offender.

Or:

2) The offender’s attorney can file certain claims or motions, such as a motion to modify or vacate a sentence. The conditions for such an action vary from state to state and offender to offender, but a competent attorney should be able to find something to file to help free the incarcerated person if the law that incarcerated them has been changed to equate their offense to a lesser, or non-existent, crime.

Fortunately, as more and more jurisdictions reform their marijuana laws, prosecutors have been dropping charges on pending marijuana cases. For example, state prosecutors in both Colorado and Washington began dismissing hundreds of misdemeanor marijuana cases in November of 2012 after citizens in those states voted to legalize pot via ballot initiatives.

As for those who are already incarcerated, when an offender is up for parole, “it is certainly possible that changes in marijuana laws are taken into consideration during parole board hearings,” says Mason Tvert, director of communications at the Marijuana Policy Project, via email. Or, because of changing laws and attitudes towards marijuana, if a prosecutor pursues a new marijuana offense, they might seek a lesser sentence than he or she would have 10 years ago.

The stakes here are not small. “In 2006, the last year for which data is available, federal government figures indicated there were more than 41,000 Americans in state or federal prison on marijuana charges,” Tvert says, adding that the actual number is probably closer to 700,000 or more if you include those serving shorter sentences in county or local lock-ups. Since 99 percent of marijuana offenses are pursued at the state and local level, the marijuana law reforms that are happening nationwide are not retroactively releasing these folks or clearing their records.

But, certainly, marijuana arrest and incarceration numbers are falling thanks to changes in the law. According to policy research conducted by Open Doors RI (open doorsri.org), “in 2007, there were 1922 arrests for first-time marijuana possession in Rhode Island. In 2008, there were 584 incidents of incarceration for marijuana possession.” Rhode Island has since decriminalized possession of up to an ounce of marijuana, making citation for possession akin to receiving a traffic ticket.